Bellinger Concludes Testimony Before UN Committee Against Torture

by Roger Alford

State Department Legal Advisor John Bellinger concluded his response to the UN Committee Against Torture yesterday, addressing over 50 questions concerning the U.S. practice and policy relating to torture. The UN’s summary of Friday’s meeting is available here and Monday’s meeting is available here. (The State Department has not yet issued summaries or transcripts). It is an extraordinarily important event for understanding the current U.S. policy regarding torture. Continue reading for the key excerpts of the UN’s summary of the two days.

UPDATE: The State Department has released its full written response here, transcripts of Bellinger’s oral testimony for May 5 and May 8 here and here, and summaries of the May 5 and May 8 meetings here and here. The remarks of Barry Lowenkron, Assistant Secretary for Democracy, Human Rights and Labor, are here. (Thanks to Anthea Roberts for the tip.)

At the outset, [Mr. Bellinger] reiterated the United States Government’s absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition. The Congress had also passed laws that provided for severe federal sanctions, both civil and criminal, against those who engaged in torture outside the territory of the United States….

In respect of Committee questions concerning United States actions taken in response to the terrorist attacks upon the country on 11 September, Mr. Bellinger said that it was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex specialis applicable to those operations. At the conclusion of the negotiation of the Convention, the United States had made it clear that the Convention was never intended to apply to armed conflicts and had emphasized that that would result in an overlap of different treaties which would undermine the objective of eradicating torture. No country had objected to that understanding.In any case torture was clearly and categorically prohibited under both human rights treaties and the law of armed conflict, Mr. Bellinger noted. While the United States maintained its view that the law of armed conflict was the lex specialis governing the detainee operations, they were pleased to provide extensive information about those operations in a sincere spirit of cooperation with the Committee.While acutely aware of the innumerable allegations that had appeared in the press and in other fora about various United States actions, Mr. Bellinger asked that the Committee not believe every allegation it had ever heard. Allegations about United States military or intelligence activities had become so hyperbolic as to be absurd. The Committee should not lose sight of the fact that those incidents were not systemic….

The Office of Legal Counsel later withdrew the August 2002 opinion and issued another opinion dated 30 December 2004, which was confined to an interpretation of the extraterritorial criminal torture statute. The August 2002 opinion was withdrawn not because it purported to change the definition of torture, but rather because it addressed questions that were not necessary to address. Neither opinion purported to change the definition of torture set out in Article 1 as understood by the United States….

Regarding whether the December 2004 memorandum created unnecessary confusion for trainers and personnel, the answer was no, the delegation said. The main finding of the investigation was that a small group of individuals, acting in contravention of United States law and Department of Defense policy, had been responsible for perpetrating the acts of abuse at Abu Ghraib. That finding had been supported in the 12 other major reviews conducted by the Department of Defense, the delegation said. There had been a total of 120 deaths of detainees in Department of Defense control in Afghanistan and Iraq. There had been no deaths in Guantanamo. The vast majority of deaths were caused by factors such as natural causes, injuries sustained on the battlefield, or detainee-on-detainee violence. In only 29 cases had abuse or other violations of law or policy been suspected….

[Monday’s Proceedings]

Mr. Bellinger said he wanted to be very clear about their position: United States officials from all government agencies were prohibited from engaging in torture at all times and in all places. They were also prohibited from engaging in cruel, inhuman or degrading treatment or punishment, as defined by United States obligations under the Convention against Torture. That was the case even in situations where the law of armed conflict applied….

Most of the regrettable incidents or allegations of mistreatment of detained enemy combatants occurred several years ago. Now, the United States had more rigorous laws, more rigorous procedures, more rigorous training and more rigorous monitoring mechanisms, Mr. Bellinger emphasized….

In response to questions by Committee Experts on the application of the law of armed conflict to United States actions in Afghanistan and Iraq, Mr. Bellinger said that, regardless of legal analysis, both the law of armed conflict and human rights treaties, such as the Convention, had provisions that prohibited torture and mistreatment. Applying the law of armed conflict did not permit the United States to engage in such acts….

Regarding the Committee’s questions about waterboarding, the delegation wanted to make two points: first, waterboarding was not listed in the current Army Field Manual and therefore was not permitted for detainees under Department of Defense control; second, it would not be appropriate for the delegation to discuss further specifics of the revised Army Field Manual at this time, as they were in the midst of final consultations with Congress about them….

The [U.S.] delegation said that the Government had acknowledged that the abuses at Abu Ghraib had been not merely the failure of individuals to follow known standards, but had also resulted from leadership failures. The United States was carefully monitoring its detention operations to prevent any recurrence of the Abu Ghraib abuses. The Government felt terrible about what had happened to the Iraqi detainees. Those people had been in United States custody and the country had had an obligation to treat them properly. It had not done that and that was wrong, the delegation said….

Addressing a question regarding habeas corpus access to United States courts and the judicial remedy provision in the Detainee Treatment Act of 2005, the delegation said that the Act provided unprecedented procedural protections — in United States domestic courts of law — to enemy combatants captured during an ongoing armed conflict and held at Guantanamo Bay. Historically, captured enemy combatants had not been able to challenge their detention before domestic courts of the nations holding them, the delegation said. In imposing a uniform review procedure, the Act foreclosed whatever limited statutory habeas corpus jurisdiction may have applied because of the location of their detention at Guantanamo.

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